USA v. Douglas, No. 06-0581 (2d Cir. 2008)

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06-0581-cr USA v. Douglas 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2007 5 (Argued: October 16, 2007 Decided: May 13, 2008) Docket No. 06-0581-cr 6 7 _________________________________________________________ 8 UNITED STATES OF AMERICA, Appellee, 9 - v. - 10 11 PAUL RYAN DOUGLAS, 12 13 Defendant-Appellant. _________________________________________________________ 14 Before: 15 KEARSE and KATZMANN, Circuit Judges, and RAKOFF, District Judge*. Appeal from an amended judgment entered in the United 16 17 States 18 Colleen McMahon, Judge, convicting defendant of killing a person in 19 connection with an attempt to steal money from ATM machines. 20 U.S.C. §§ 2113(a) and (e). 21 22 23 24 25 District Court for the Southern District of New York, See 18 Affirmed. STEPHEN J. RITCHIN, Assistant United States Attorney, New York, New York (Michael J. Garcia, United States Attorney for the Southern District of New York, Karen B. * Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. Konigsberg, Celeste L. Koeleveld, Assistant United States Attorneys, New York, New York, on the brief), for Appellee. 1 2 3 CLINTON W. CALHOUN, III, White Plains, New York (Briccetti, Calhoun & Lawrence, White Plains, New York, on the brief), for Defendant-Appellant. 4 5 6 7 8 KEARSE, Circuit Judge: Defendant 9 Paul Ryan Douglas appeals from an amended 10 judgment, entered in the United States District Court for the 11 Southern District of New York following a jury trial before Colleen 12 McMahon, Judge, convicting him of killing a person in connection 13 with an attempt to enter a bank with intent to commit a crime 14 therein, 15 sentencing him principally to a mandatory term of life imprisonment 16 and ordering him to pay $11,081.44 in restitution. 17 Douglas contends principally (1) that, because a § 2113(e) offense 18 may be punished by death, he was entitled to representation by two 19 attorneys, see 18 U.S.C. § 3005, and the district court erred in 20 dismissing one of his two appointed attorneys after the government 21 stated that it would not seek the death penalty; (2) that the 22 government engaged in impermissible discrimination in the use of a 23 peremptory challenge during jury selection; (3) that there were 24 various errors in connection with the eyewitness identification 25 evidence admitted against him; and (4) that evidence obtained in 26 violation of his privilege against self-incrimination should not in violation of 18 U.S.C. -2- §§ 2113(a) and (e), and On appeal, 1 have been admitted in evidence in the government's rebuttal case. 2 For the reasons that follow, we affirm. I. 3 BACKGROUND 4 The present prosecution arose out of an attempted theft 5 from automated teller machines ("ATMs") at a branch of Citibank, 6 N.A., located in a building on Central Park Avenue in Yonkers, New 7 York (the "Yonkers ATMs"), during which an ATM technician was 8 killed. 9 that charged him with attempting to enter a bank facility with Douglas was tried on a two-count superseding indictment 10 intent to commit larceny therein, in violation of 18 U.S.C. 11 § 2113(a) (count one), and killing a person in connection with that 12 attempt, in violation of 18 U.S.C. §§ 2113(a) and (e) (count two). 13 We summarize the evidence as to the robbery attempt, as well as the 14 evidence as to Douglas's ensuing flight and statements, in the light 15 most favorable to the government. 16 A. The Government's Direct Case 17 In 2004, Citibank ATMs were serviced by Brink's, Inc. 18 ("Brink's"), which periodically replenished the machines with cash. 19 From late 1999 through mid-2002, Douglas was an employee of Brink's. 20 Part of his job had been to fill the Yonkers ATMs with $400,000 to 21 $500,000 in cash on Thursday mornings. 22 In April 2004, Milton Moran, Jr. ("Moran"), was employed -3- 1 by Brink's as an ATM repair technician. 2 April 22, 2004, Moran went to the building in which the Yonkers ATMs 3 were located to repair an ATM printer. 4 Moran normally carried, inter alia, a pouch containing (a) keys to 5 give him access to the backs of the ATMs and (b) the various codes 6 for disabling alarms and for releasing the electronic locks on the 7 backs of the ATMs; as a matter of Brink's policy, he also carried a 8 gun. 9 he had arrived at the Yonkers ATMs facility; at 9:02 a.m. he 10 On the morning of Thursday, For such an assignment, At 8:54 on that Thursday morning, Moran notified Brink's that notified Brink's that he was about to depart. 11 At about 10:00 or 10:30 that morning, John Vitetta, who 12 worked in a ground floor office in the building in which the Yonkers 13 ATMs were located, was in the parking lot working on his car when he 14 saw a body being dragged between an SUV and an adjacent Toyota. 15 Thinking 16 attention to his car. 17 saw feet sticking out of the trunk of the Toyota and saw a man 18 standing behind the open trunk. 19 being dragged was not that of a mannequin but that of a person, 20 Vitetta ran into his office and called 911. 21 pointed out Douglas as the man he had seen standing behind the trunk 22 in which the body had just been placed. 23 he 24 photographic array shown to him by the police two days after the 25 event. had the body selected was the a CPR mannequin, Vitetta returned his After hearing a thud and looking up again, he picture Realizing that the body he had seen of -4- At trial, Vitetta Vitetta also testified that Douglas from a six-picture 1 When the police arrived at the parking lot in response to 2 Vitetta's 911 call, they opened the trunk of the Toyota and found 3 Moran, dead, with duct tape wrapped around his mouth and head. 4 Moran had extensive bruising on the head, along with contusions on 5 his arm and hand that were consistent with defensive wounds. 6 cause of death was determined to be principally asphyxia due to 7 smothering, along with blunt force trauma to the head and face. 8 keys and codes that Moran had used to gain access to the back and 9 interior of the ATM machine were missing. The The And although Moran was 10 wearing a gun holster and carrying a gun permit, his gun was 11 missing. Marilyn Sarin, employed in the same office as Vitetta, had 12 13 heard Vitetta calling 911 and describing what he had seen. 14 then run into the parking lot and had seen an SUV back swiftly out 15 of a parking spot and speed out of the lot through the marked 16 entrance rather than the exit. 17 vehicle was driven by "a heavyset, black male with dark facial 18 hair." 19 unsure whether she would recognize the driver if she saw him again, 20 she testified that when she was shown a six-picture array four days 21 after the incident, see Part II.C.1. below, she selected the picture 22 of Douglas as the driver. 23 She had Sarin testified at trial that the (Trial Transcript ("Tr."), at 178.) Although Sarin was In addition, upon observing the SUV on the morning of 24 April 22, Sarin wrote down the SUV's license plate number. 25 revealed that the vehicle belonged to a woman with whom Douglas was -5- Records 1 living in Brooklyn. 2 its contents included a loaded shotgun, a bulletproof vest, a 3 suitcase containing men's clothing and toiletry items, Douglas's 4 social 5 passport. security When the SUV was recovered several days later, card, and his then-recently expired Jamaican 6 Douglas, after exiting the Yonkers ATMs parking lot on 7 April 22, shortly left the New York area by bus and made his way to 8 Florida. 9 of the family, both of whom were called as witnesses by the 10 11 There he made statements to his cousin and a close friend government. Douglas told those witnesses that he had planned, in 12 collaboration with Moran, to steal money from ATM machines 13 immediately after the machines received cash infusions. Douglas was 14 to hit Moran on the head and bind his mouth and hands to make it 15 appear that Moran had been a robbery victim. 16 hit Moran on the head and taped Moran's mouth while they were in the 17 SUV; that the Brink's truck bringing cash to the ATMs did not arrive 18 when expected; and that while he and Moran were waiting, Moran 19 pointed out that the tape on his mouth had come loose and Douglas 20 tightened it. 21 whether the cash had been delivered, and when he returned to the 22 SUV, he found Moran unresponsive, and he panicked. 23 body in the trunk of Moran's car and fled in his girlfriend's SUV. 24 On April 26, Douglas turned himself in to the police in 25 Florida, saying, inter alia, that he had been involved in a robbery Douglas said he had Douglas said he then went to the ATMs to check on -6- He put Moran's 1 attempt in New York in which a man had died. 2 B. Douglas's Defense Douglas's 3 defense consisted principally of his own 4 testimony. He admitted that he had made most of the statements to 5 which his cousin and friend testified; but Douglas testified that he 6 had given them a story that he had "made up" (Tr. 569). 7 testified that he had in fact been at the site of the Yonkers ATMs 8 on the morning in question, had put Moran's body in the trunk of 9 Moran's car, and had left the scene in his girlfriend's SUV. Douglas He 10 also admitted that he had gone to Florida and told his cousin and 11 their friend that he and Moran had planned to rob the ATMs together 12 and that Moran had accidentally died. 13 he had said anything about hitting Moran, tying him up, or taping 14 his mouth; he also denied that he had gone to see whether the ATMs' 15 expected cash delivery had arrived or had tightened the tape on 16 Moran's mouth. Douglas testified that in fact Moran had been killed 17 by another man. However, Douglas denied that 18 Douglas testified that some three months prior to April 19 22, he encountered a man he had not met before and the man began 20 extorting 21 Douglas--who testified that in Jamaica he had been a policeman for 22 more than six years--never notified the authorities of the extortion 23 (see, e.g., Tr. 612-15); he gave the man money on several occasions 24 (a total of $13,000 (see id. at 752)), indeed draining his bank money from him by threatening -7- him and his family. 1 account (and borrowing on his credit cards and pawning his jewelry) 2 to do so (see id. at 473-74). 3 skinned than himself, with dreadlocks or twists in his hair, but 4 testified that he did not know the man's name. 5 somehow knew, without any input from Douglas, that Douglas had 6 formerly worked at Brink's. 7 the unnamed man to the site of the Yonkers ATMs on the morning of 8 April 22 (see Tr. 482-83), and on April 22 he did so with the 9 unnamed man holding a gun to his neck. 10 was this unnamed man who killed Moran. Douglas described the man as darker- However, the man On April 20, Douglas agreed to drive Douglas testified that it 11 Douglas testified that after he drove the unnamed man to 12 the Yonkers ATMs location, he drove around the parking lot, then 13 parked for a while, and then exited the lot and parked on the 14 street, adjacent to the lot. 15 sat on the back bumper while the unnamed man sat in the SUV and 16 cased the location for purposes of a robbery. 17 Moran, whom he knew, approaching the building and sorting through a 18 ring of keys, Douglas reentered the SUV; the unnamed man asked who 19 Moran 20 technician. 21 lot. 22 building and approached his own car, the unnamed man exited the SUV, 23 approached Moran, and jammed his gun into Moran's back. 24 forced Moran to drive Moran's car from its spot in front of the ATM- 25 area entrance to a corner of the lot and beckoned to Douglas to was, and Douglas Douglas then got out of the SUV and informed him that After Douglas saw Moran was an ATM The unnamed man forced Douglas to reenter the parking When Moran reappeared some 10 minutes later after leaving the -8- The man 1 bring the SUV to the parking spot next to Moran's car; the man then 2 put Moran into the back seat of the SUV. 3 climbed into the SUV's back seat, and he forced Moran to give him 4 the keys, to identify those that unlocked the doors to the ATMs, and 5 to disclose the alarm-disabling codes. 6 the keys and codes and told him to make sure the codes were correct. 7 Douglas testified that before he went to check on the ATM 8 codes, the unnamed man asked whether he had rope to tie up Moran; 9 Douglas responded that he did not have rope but volunteered that he 10 did have duct tape "if that can help" (Tr. 522), and he gave the man 11 his duct tape. 12 walked around the corner of the building in which the ATMs were 13 located 14 building; after remaining out of sight of the unnamed man for some 15 10-15 minutes, he returned to the SUV, got into the driver's seat, 16 and said the codes were good. 17 front passenger seat. 18 seat, he got out and opened the back door and found Moran on the 19 floor, bruised, gagged, and unresponsive. Douglas got into the back 20 seat and tried to pull the duct tape from Moran's mouth but was 21 unsuccessful. 22 but The unnamed man also The man then gave Douglas Douglas testified that he then left the SUV and that he never entered or attempted to enter the The unnamed man was by then in the When Douglas could not see Moran in the back Douglas testified that he "was crying and then the crying 23 turned to rage." (Tr. 544.) He suddenly "remembered" that he had 24 in the back of the SUV a shotgun (see id.)--which he had begun to 25 carry in his own vehicle because he was being threatened by the -9- 1 unnamed man and which he transferred to the rear area of the SUV on 2 the eve of these events (see id. at 488-92). 3 when he remembered the shotgun, he "jumped up and . . . reached for" 4 the shotgun case, "unzipped the case," pulled the shotgun out and 5 "brought it forward," and then "racked it," making a "cha-chu" 6 sound. 7 unnamed man, the man jumped out of the car and fled on foot. (Id. at 544-45.) Douglas testified that When he then pointed the shotgun at the 8 Douglas testified that, after some deliberation, he pulled 9 Moran's body out of the SUV, and it hit the ground with a very loud 10 thud. Douglas testified that he then saw Vitetta in the parking 11 lot, watching him. 12 car. 13 parking garage, and fled to Florida. 14 C. Douglas put Moran's body in the trunk of Moran's He then drove the SUV to Brooklyn, left it in a hospital The Government's Cross-examination and Impeachment of Douglas In 15 cross-examining Douglas, the government elicited 16 answers that, inter alia, highlighted the implausibilities in his 17 story. 18 proof vest precisely because he was afraid of the unnamed man, and 19 having put them into the back of the SUV on April 21 knowing he 20 would be driving the unnamed man to Yonkers the next morning, 21 Douglas testified that he made no attempt to get the shotgun or vest 22 on April 22 when the unnamed man went off to intercept Moran and 23 left Douglas alone in the SUV. 24 seeing Moran's condition, Douglas admitted that his only attempt to For example, having begun to carry the shotgun and bullet- Having testified that he cried after - 10 - 1 revive Moran was the unsuccessful effort to remove the tape from 2 Moran's mouth, and that although he did not know whether Moran was 3 still alive (he made no attempt to discern whether Moran still had 4 a pulse), it never occurred to him to take Moran into the doctor's 5 office 6 proclaiming his innocence at trial, during the nearly 20 months 7 between his arrest in this case and his testifying at trial Douglas 8 had made no effort whatever to tell the authorities about the 9 unnamed man. 10 11 12 13 14 that Douglas knew was in the building. And despite The government also asked Douglas about his decision to put Moran's body in the trunk of Moran's car: Q: So the decision to take this dead body and dump it into the trunk of a car, that was your decision, right? 15 A: 16 . . . 17 Q: Now Milton was an ATM tech, right? 18 A: That is correct. 19 Q: And ATM techs are armed, right? 20 21 Yes, that was all mine. A: Yes, recollection. I think they are, far as 22 Q: And you know that, right? 23 A: Yes. 24 Q: And Milton was armed that day, right? 25 A: I don't know if he was. 26 Q: You have no idea whether he was armed? 27 A: No. - 11 - my Q: You have no idea whether he had a gun on 1 2 him? A: 3 4 5 him? Q: You're not sure whether he had a gun on You have no idea what happened to that gun? A: 6 I think he might have, but I'm not sure. No, I didn't do anything. 7 (Tr. at 674-75 (emphases added).) As discussed in Part II.D. below, 8 the government was then allowed to question Douglas with respect to 9 a statement he had made about Moran's gun to the police in Florida, 10 which the government had acknowledged was inadmissible in its case- 11 in-chief because it had been given in response to questioning before 12 Douglas was given warnings pursuant to Miranda v. Arizona, 384 U.S. 13 436 (1966). 14 Moran's gun off a bridge. Douglas had told the Florida police that he had thrown 15 The government continued its cross-examination of Douglas 16 by asking whether, when he put Moran's body in the trunk of the 17 Toyota, he noticed that Moran's gun holster was empty. 18 responded that he did not observe a holster, and he reiterated that 19 he did not do anything with Moran's gun and did not know what 20 happened 21 questioned by Florida police officers who were relaying an inquiry 22 from the police in Yonkers as to the whereabouts of Moran's gun. 23 Douglas denied telling the Florida officers that he had thrown the 24 gun off the bridge. to it. The government then asked him Douglas about being 25 In its rebuttal case, the government called two Florida 26 police officers, who testified that Douglas told them he had thrown - 12 - 1 Moran's gun off a bridge. The district court instructed the jury 2 that it was to consider this evidence for impeachment purposes only, 3 and not for its truth. 4 D. The Verdict and the Sentence 5 The jury found Douglas guilty on both counts of the 6 superseding indictment, i.e., attempted entry of a bank facility 7 with intent to commit a felony therein, in violation of 18 U.S.C. 8 § 2113(a), and killing a person in connection with that attempt, in 9 violation of 18 U.S.C. §§ 2113(a) and (e). 10 On Douglas's motion, consented to by the government, the 11 district court essentially concluded that the offense of attempted 12 entry of a bank with intent to commit a felony therein in violation 13 of 18 U.S.C. § 2113(a) is included within the § 2113(e) offense of 14 causing the death of a person while committing that § 2113(a) 15 offense, and it entered a judgment of conviction only on the latter 16 count. 17 another in the course of violating § 2113(a) shall be punished by 18 death or life imprisonment, and as the government had announced 19 prior to trial that it would not seek the death penalty, the 20 district court sentenced Douglas principally to life imprisonment. 21 Douglas was sentenced on January 31, 2006. 22 decision on the matter of restitution, pending receipt of additional 23 information. As 18 U.S.C. § 2113(e) provides that any person who kills - 13 - The court deferred 1 On May 3, 2006, no restitution order having yet been 2 entered, Douglas wrote to the court, contending that such an order 3 could 4 § 3664(d)(5) provides that a restitution order may be entered up to 5 90 days after sentencing. 6 sentenced on January 31, 2006, the period within which a restitution 7 order could be entered had ended on May 1, 2006. no longer be entered against him because 18 U.S.C. Douglas argued that as he had been 8 On May 5, 2006, the district court entered an order 9 rejecting the untimeliness contention, finding that Douglas was not 10 prejudiced by the delay from May 1 to May 5, and ordering him to pay 11 Brink's and Moran's father restitution totaling $11,081.44. 12 Part II.E.2. below. 13 order, was entered, and this appeal followed. 14 See An amended judgment, adding the restitution II. DISCUSSION 15 On appeal, Douglas contends principally (1) that, because 16 he was charged with an offense that was statutorily punishable by 17 death, he was entitled to representation by two attorneys pursuant 18 to 18 U.S.C. § 3005 despite the government's notification that it 19 would not seek the death penalty; (2) that the government used a 20 peremptory challenge during voir dire to discriminate against him on 21 the basis of race; (3) that there were various errors in connection 22 with the admission of the identification testimony by Vitetta and 23 Sarin; and (4) that the court improperly allowed the government to - 14 - 1 cross-examine him--and to introduce rebuttal evidence--about his 2 postarrest response to questioning by the police in Florida, without 3 Miranda warnings, that he had possessed and disposed of Moran's gun. 4 Douglas 5 insufficient to support a finding that he attempted to enter the 6 Yonkers ATMs facility and that the restitution order was untimely 7 and substantively improper. 8 affirm. 9 A. also contends, inter alia, that the evidence was Finding no basis for reversal, we The Claim of Entitlement to Representation By Two Attorneys 10 Count One of the superseding indictment against Douglas 11 charged him with attempting to enter a banking facility with intent 12 to commit a larceny therein, in violation of 18 U.S.C. § 2113(a). 13 Count two charged that in connection with that offense, Douglas 14 killed Moran in violation of subsection (e) of that section, which 15 provides that "[w]hoever, in committing any offense defined in this 16 section, . . . kills any person, . . . shall be punished by death or 17 life imprisonment." The 18 18 U.S.C. § 2113(e) (emphasis added). original indictment against Douglas, which also 19 charged him with violating § 2113(e), was filed on September 27, 20 2004. 21 his arrest was Paul E. Davison, Esq., of the Office of the Federal 22 Defender. 23 sentence if Douglas were convicted on count two, Davison requested 24 the appointment for Douglas, pursuant to 18 U.S.C. § 3005, of a The first attorney appointed to represent Douglas following On October 5, 2004, in light of the potential death - 15 - 1 second attorney, one learned in the law applicable to capital cases. 2 The court granted that request by order dated October 6, 2004, 3 appointing Clinton W. Calhoun, III, Esq., who was learned in the law 4 applicable to capital cases, as an additional attorney to represent 5 Douglas. 6 By letter dated March 2, 2005, the government informed 7 Douglas and the court that it would not seek the death penalty in 8 the present case. 9 at 2.) (See also Conference Transcript, March 9, 2005, Douglas requested that the court nonetheless continue the 10 appointment of both Calhoun and Davison as his attorneys. The court 11 rejected the request, reasoning that where there was no longer a 12 potential death sentence, the services of counsel learned in the law 13 applicable to capital cases were no longer needed. 14 concluded that "the government only needs to pay for one lawyer from 15 this point forward . . . ." 16 decide which attorney would continue to represent him, and, without 17 waiving his objection to the court's ruling, he opted for Calhoun. 18 On this appeal, Douglas contends, raising an issue of 19 first impression in this Court, that the district court's refusal to 20 continue the appointment of a second attorney for him following the 21 government's notification that it would not seek the death penalty 22 violated his right under 18 U.S.C. § 3005 to be represented by two 23 attorneys and that he is therefore entitled to a new trial. 24 disagree. 25 (Id. at 3.) The court Douglas was allowed to We Section 3005 provides that when a person "is indicted for - 16 - 1 2 3 4 5 6 7 [a] capital crime," the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 . . . counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours. 8 18 U.S.C. § 3005 (emphases added). The section states plainly that 9 such death-penalty-qualified counsel is to be appointed promptly in 10 a case involving a capital crime; but it is silent as to whether the 11 court has an obligation to continue the appointment after the 12 government has announced that it does not seek the death penalty. 13 However, "the purpose of the two-attorney right is to 14 reduce the chance that an innocent defendant would be put to death 15 because of inadvertence or errors in judgment of his counsel," 16 United States v. Waggoner, 339 F.3d 915, 918 (9th Cir. 2003) 17 (internal quotation marks omitted), cert. denied, 543 U.S. 1005 18 (2004), and all but one of our Sister Circuits that have dealt with 19 this issue have reasoned that once the government has announced that 20 it does not seek the death penalty, the case is no longer a capital 21 case, see, e.g., United States v. Casseus, 282 F.3d 253, 256 (3d 22 Cir.), cert. denied, 537 U.S. 852 (2002), and the appointment of 23 counsel learned in death penalty law may be terminated, see, e.g., 24 United States v. Waggoner, 339 F.3d at 917-19; In re Sterling- 25 Suarez, 306 F.3d 1170, 1174-75 (1st Cir. 2002); United States v. 26 Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998), cert. denied, 525 U.S. 27 1088 (1999). 28 In United States v. Waggoner, for example, the district - 17 - 1 court appointed death-penalty-qualified second counsel on an interim 2 basis, pending the government's determination of whether to seek the 3 death penalty. 4 seek that penalty, the court terminated the appointment. 5 Circuit found no error in either the conditional nature of the 6 appointment or the termination of the appointment once the death 7 penalty was no longer a potential sentence: After the government announced that it would not The Ninth 8 9 10 11 12 The question we address in this case is whether the defendant's right to be represented by two attorneys is extinguished once the threat of capital punishment has been irrevocably removed from the slate of available punishments. 13 14 15 16 17 In this case, the district court properly concluded that the defendant was not entitled to be represented by two attorneys after the government filed formal notice that it did not intend to seek the death penalty. 18 19 20 21 22 23 24 25 26 . . . . . . . [W]hen a defendant is no longer subject to "indictment" for a "capital crime" because the threat that the death penalty will be imposed has been eliminated, the defendant no longer has a statutory right to a second court-appointed attorney to defend him at the trial of the non-capital offense. 339 F.3d at 917, 919 (emphasis added). 27 Similarly, in United States v. Grimes, in which the 28 government had "stated, on the record prior to trial, that it would 29 not seek the death penalty in this case," the Eleventh Circuit ruled 30 that the defendant "was properly denied benefits afforded to a 31 capital defendant because the Government stipulated that it would 32 not seek the death penalty and thereby transformed this case into a - 18 - 1 non-capital proceeding." 2 Sterling-Suarez, 306 F.3d at 1175 (granting mandamus requiring the 3 district court to appoint death-penalty-qualified second counsel 4 promptly, rather than wait for a decision by the government as to 5 whether to seek or eschew the death penalty, stating that "there are 6 practical reasons to treat the case as capital from indictment 7 forward, for purposes of appointing learned counsel, until it 8 becomes clear that the death penalty is no longer an option" and the 9 matter is no longer a "capital case") (first emphasis in original; 10 second emphasis ours); United States v. Casseus, 282 F.3d at 256 11 (holding that any error in the district court's refusal to appoint 12 death-penalty-qualified second counsel was harmless in light of the 13 facts 14 pressured 15 government announced prior to trial that it would not seek the death 16 penalty; "after the government declared that it would not seek the 17 death penalty, the appellants were no longer capital defendants"). 18 Other Circuits had similarly held that § 3005 did not 19 require the appointment of a second attorney where a sentence of 20 death was precluded by the Supreme Court's decision in Furman v. 21 Georgia, 408 U.S. 238 (1972), which invalidated the death penalty 22 under statutory schemes then in effect. See, e.g., United States v. 23 Shepherd, 576 F.2d 719, 727-29 (7th Cir.) (§ 3005 "does not apply 24 because there is no possibility that the death penalty can be 25 imposed"), cert. denied, 439 U.S. 852 (1978); United States v. that by during the plea 142 F.3d at 1347. negotiations possibility of - 19 - death the See also In re defendants sentences and were not that the 1 Weddell, 567 F.2d 767, 770-71 (8th Cir. 1977) (in light of Furman, 2 the case "lost its capital nature as charged in the indictment. 3 follows that the district court did not err in rejecting Weddell's 4 request for the appointment of a second attorney pursuant to 18 5 U.S.C. § 3005."), cert. denied, 436 U.S. 919 (1978). It 6 So far as we are aware, only the Fourth Circuit has taken 7 an opposite view, although the precise contours of that Circuit's 8 views of the scope of § 3005 are not entirely clear. 9 States v. Boone, 245 F.3d 352, 358-61 (4th Cir. 2001) ("Boone"), in 10 which one count charged the defendant with an offense that could be 11 punished by death and the district court did not appoint death- 12 penalty-qualified counsel, the Fourth Circuit ordered a new trial on 13 that count despite the fact that the government had not sought the 14 death penalty. 15 appointment of death-penalty-qualified counsel in a case where the 16 death penalty may be imposed attaches upon indictment and that that 17 right is absolute and not extinguished, even when the government 18 does not in fact seek the death penalty. In United The Boone court ruled that the § 3005 right to the See id. at 358-59. 19 Although in Boone, the court ruled that the error in 20 failing to appoint such counsel could not be deemed harmless, see 21 id. at 361 n.8, the Fourth Circuit viewed the rights created by 22 § 3005 as less absolute in United States v. Robinson, 275 F.3d 371, 23 383-84 (4th Cir.) ("Robinson"), cert. denied, 535 U.S. 1006 (2002), 24 declining to reverse a conviction where death-penalty-qualified 25 counsel had been appointed but the appointment was terminated-- - 20 - 1 without objection--after the government elected not to seek the 2 death penalty. 3 the failure to provide Robinson with two attorneys throughout trial 4 was plain error even though the Government withdrew its notice of 5 intent to seek the death penalty," id. at 384 (emphasis added); but 6 the Robinson court concluded that "the failure to provide a non- 7 capital defendant with the benefit of a provision designed to 8 provide additional protection to capital defendants[ ]did not affect 9 the fairness, In Robinson, the court stated that "[u]nder Boone, integrity, or public reputation of judicial 10 proceedings," id. (emphases in original); see also Boone, 245 F.3d 11 at 360 ("Surely, if the government decides not to seek the death 12 penalty, then the penalty phase is won before trial . . . ."). 13 In any event, we agree with the majority of the federal 14 courts of appeals that once the government has formally informed the 15 court and the defendant of its intention not to seek the death 16 penalty, the matter is no longer a capital case within the meaning 17 of § 3005 and that section does not require the district court to 18 continue the appointment of a second attorney. 19 in the present case properly appointed such counsel for Douglas upon 20 his request shortly after the filing of the original indictment; and 21 it was not error for the court to rule that after the government's 22 renunciation of any intent to seek the death penalty, Douglas was 23 not entitled to representation by more than one government-funded 24 attorney. 25 The district court Finally, we emphasize that the question on this appeal is - 21 - 1 whether the district court erred in requiring Douglas to proceed 2 with only one government-funded attorney once it became clear that 3 he would not be subject to the death penalty. 4 § 3005 does not entitle a defendant to a second attorney under these 5 circumstances 6 discretion, from maintaining the dual appointment in a future case 7 out of a "concern for fairness at the trial of a criminal offense," 8 United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976). "[N]o 9 right ranks higher than the right of the accused to a fair trial." 10 United States v. King, 140 F.3d 76, 81 (2d Cir. 1998) (internal 11 quotation 12 discontinued Davison's appointment nine months before the trial was 13 scheduled to begin, leaving more than enough time for Calhoun, 14 Douglas's remaining attorney, to get ready for trial and undertake 15 whatever responsibilities had been shouldered by Davison. 16 when, if ever, the retention of both counsel is necessary in the 17 interest of justice after the government has announced it will not 18 seek the death penalty is an exercise best left to the broad 19 discretion of the district court. 20 B. would marks not omitted). preclude In a this Our conclusion that district case, the court, in district its court Deciding The Government's Use of Peremptory Challenges 21 Douglas, a man of color originally from Jamaica, contends 22 that under Batson v. Kentucky, 476 U.S. 79 (1986), he is entitled to 23 a new trial on the ground that the government, in exercising a 24 peremptory challenge during jury selection, discriminated against - 22 - 1 him on the basis of race, in violation of his right to equal 2 protection. 3 government to a prospective juror (apparently a man of color) who 4 had stated in response to the court's initial background questions 5 that he was from Jamaica. This claim is based on the peremptory challenge by the 6 In Hernandez v. New York, 500 U.S. 352 (1991), the Supreme 7 Court discussed the framework for analyzing a defendant's claim of 8 discriminatory use of peremptory challenges, established by Batson 9 in the context of a claim of discrimination based on race: . . . Batson . . . outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S., at 96-98. . . . First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Hernandez, 500 U.S. at 358-59 (plurality opinion). 25 As to the prosecution's burden to proffer a neutral 26 explanation, the Court has stated that "[u]nless a discriminatory 27 intent is inherent in the prosecutor's explanation, the reason 28 offered will be deemed race neutral." 29 765, 30 Discriminatory intent may be found to be inherent where the proffer 31 of a supposedly race-neutral explanation has a racial ingredient. 32 See, e.g., Walker v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005) 767-68 (1995) (internal - 23 - Purkett v. Elem, 514 U.S. quotation marks omitted). 1 (ordering a new trial where the prosecutor began her proffer by 2 stating that "'one of the main things [she] had a problem with was 3 that this [wa]s an individual who was a Black man with no kids and 4 no family'" (quoting prosecutor) (emphasis in Walker)). 5 Since "'a finding [as to whether there was] intentional 6 discrimination is a finding of fact,'" and "the trial court findings 7 . . . in this context . . . 'largely will turn on evaluation of 8 credibility,'" Hernandez, 500 U.S. at 364, 365 (plurality opinion) 9 (quoting Batson, 476 U.S. at 98 n.21) (other internal quotation 10 marks omitted), 11 prosecutor's reason was race-neutral may be overturned only if that 12 finding 13 (plurality 14 O'Connor, J.) ("I agree with the plurality that we review for clear 15 error the trial court's finding as to discriminatory intent, and 16 agree with its analysis of this issue." 17 believes the prosecutor's nonracial justification, and that finding 18 is not clearly erroneous, that is the end of the matter."). 19 well established that "'[w]here there are two permissible views of 20 the evidence, the factfinder's choice between them cannot be clearly 21 erroneous,'" id. at 369 (plurality opinion) (quoting Anderson v. 22 Bessemer City, 470 U.S. 564, 574 (1985)). is the clearly opinion); trial court's erroneous, id. at see 372, finding as Hernandez, 375 to 500 (concurring whether U.S. at opinion the 369 of "[I]f . . . the trial court It is 23 Where a prosecutor has articulated multiple reasons for 24 his peremptory challenge, one of which is race, "dual motivation" 25 analysis is appropriate. See, e.g., Howard v. Senkowski, 986 F.2d - 24 - 1 24, 24 (2d Cir. 1993). In those circumstances, the Batson claim 2 should be rejected if the prosecutor persuades the court "that the 3 challenges would have been exercised for race-neutral reasons even 4 if race had not been a factor." Id. 5 The record in the present case persuades us that the 6 district court permissibly found that the government articulated, 7 and possessed, a neutral reason for excusing the juror in question 8 and that he would have been excused whether or not race was a 9 consideration. In conducting the voir dire, the district judge 10 determined that several prospective jurors had actually served on a 11 jury; one member of this group was Mr. Stewart, who had previously 12 stated that he was from Jamaica. 13 of the group would be asked to describe his or her jury service 14 without disclosing the verdict, if any: The court stated that each member Each of you I want to answer the following 15 question: 16 17 When were you a juror? 18 What kind of a case? 19 20 21 Did the jur[y] reach a verdict? Yes or no. Not what the verdict was. Did you reach a verdict? Yes or no. 22 23 24 Or if the case settled or for whatever reason you didn't deliberate, just say, we didn't deliberate. Okay? 25 (Jury Selection Transcript ("J.S. Tr."), at 67 (emphasis added).) 26 The court then asked each member of the group in turn to answer 27 these questions. When the court - 25 - called on Mr. Stewart, he 1 responded: "It was three years ago and there was a not-guilty 2 verdict." 3 was a verdict. 4 is, people, I just want to know if you reached a verdict." (Id. at 68 (emphasis added).) Thank you. The judge stated: "There I don't want to know what the verdict (Id.) 5 The government used its first peremptory challenge to 6 excuse Mr. Stewart, and Douglas promptly made a Batson objection. 7 The court conducted the following inquiry: 8 9 10 11 12 13 14 15 THE COURT: . . . . [A p]rima faci[e] case of discrimination in jury selection is established when a defendant is a member of a cognizable racial group, the prosecutor uses a peremptory challenge to remove members of that group from the jury and these facts and other relevant circumstances raise an inference the prosecutor has excluded jurors on account of their race. 16 I assume this is your challenge, Mr. Calhoun? 17 MR. CALHOUN: 18 . . . . 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Yes, it is, your Honor. . . . Your Honor, we have so few persons of color to deal with in this group of jurors . . . . . . . . . . [I]n listening to Mr. Stewart's . . . answers to your Honor's questions and watching him during jury selection, I discern no valid basis . . . why he should be challenged. The only remote connection I saw was that he's from Jamaica, but I don't know if national origin means anything at all. I don't see any basis why he should be challenged, and I ask the court to determine whether there is a racially neutral explanation for why the government challenged him. THE COURT: Mr. Ritchin? MR. RITCHIN [Assistant United States Attorney ("AUSA")]: Your Honor, I would point to a number of factors. - 26 - 1 2 First, . . . there is no pattern here. the Government's first strike. 3 4 5 6 The second of which is the factor that Mr. Calhoun pointed to, he is from the same country as the defendant and there's some concern that he might, therefore, have sympathy for the defendant. 7 8 9 10 11 12 A third factor is that, despite the court's instruction that . . . jurors not . . . give the verdict of any case on which they have sat, Mr. Stewart did provide that verdict in response to the question indicating some inability to follow directions. 13 14 And the fourth factor I suppose is the answer he gave, which, for a prosecutor, gives some pause. 15 16 17 18 19 20 21 THE COURT: Correct. I anticipated that this was going to happen, and you're going to have to convince me, Mr. Calhoun, that the reason Mr. Stewart was challenged was something other than he announced to the world that he was on a jury, that he voted to acquit a defendant. If I were a prosecutor, he's the first guy I'd want off. 22 23 24 25 26 27 28 29 MR. CALHOUN: Well, I don't know if I can convince anybody of that, but I think it's far more likely that he misunderstood your Honor's instruction about not revealing the verdict. I don't know why--without knowing anything about the case and anything about the evidence that was presented in that case, it may have been a perfectly fine verdict. 30 31 32 33 THE COURT: May have been. That's not to say that a prosecutor wouldn't want such a person off the jury, whether the person was black, white or purple. 34 35 36 37 38 39 40 MR. CALHOUN: I just don't think that the fact that he was on some jury somewhere sometime in the past and rendered a not-guilty verdict or participated in a verdict that was not guilty, I don't think it means anything at all, and I don't see why it would be any factor at all in determining whether to challenge somebody. 41 (J.S. Tr. 96-99 (emphases added).) - 27 - This is 1 Although the court noted that one of the reasons given by 2 the AUSA--that Mr. Stewart was from the same country as Douglas--was 3 not neutral, it found that the explanation that Mr. Stewart had 4 served on a jury that returned a verdict of acquittal was a neutral 5 reason and one that the court found to be genuine--and, indeed, so 6 predictable a basis for peremptory challenge that it was the impetus 7 for the court's instruction that the prospective jurors not disclose 8 their prior verdicts: 9 10 11 12 13 THE COURT: . . . . As far as I'm concerned, in this instance, the government has given a raceneutral reason for challenging Mr. Stewart. I reiterate, the minute he said that, I said, I see what's coming, a challenge and a Batson. 14 15 16 17 18 19 But Mr. Stewart, in response to the court's question about prior jury service, indicated that he was on a jury that reached a verdict. He further indicated it was a criminal case, and then, contrary to my instruction, he announced that the jury had acquitted in that case. 20 21 22 23 24 25 26 27 28 29 It's entirely possible, as Mr. Calhoun says, that he misunderstood my instruction; however, he did give that information, and if I were a prosecutor, I would want such an individual off the jury myself. That is the reason that I don't ask that question. No Judge I know wants that information out because acquitters tend to be people that the government does not want, the prosecution does not want. Convictors . . . tend to be . . . people that the defendant doesn't want. 30 31 32 33 34 35 36 37 It's an absolutely race-neutral reason for striking him from the jury, the same-country argument is not, and the inability to follow instructions is not persuasive. But the fact that the defendant was on the jury that it voted to acquit is a completely race-neutral reason striking him from the jury and the Batson challenge is disallowed. 38 (J.S. Tr. at 99-100 (emphases added).) - 28 - 1 Although Douglas argues that the government did "not put 2 forth clearly" that "Mr. Stewart had been on [a] jury that voted for 3 acquittal" as one of its reasons for excusing Mr. Stewart (Douglas 4 brief on appeal at 40), the district court plainly so understood the 5 AUSA's 6 defense counsel, who argued that "it may have been a perfectly fine 7 verdict" (J.S. Tr. 98). 8 of the verdict was sufficiently clear. articulation of his "fourth factor"--as apparently did Plainly, the AUSA's concern for the nature Further, the record quoted above shows that the trial 9 10 court found the AUSA's neutral explanation to be credible. The 11 finding that individuals of any race or color who have served on 12 juries that acquitted "tend to be people the government does not 13 want" is a permissible view, and the court's finding that the 14 government would have used a peremptory challenge to excuse Mr. 15 Stewart regardless of race is not clearly erroneous. 16 that the court properly rejected Douglas's Batson challenge. We conclude 17 Finally, to the extent that Douglas may be suggesting that 18 he was denied equal protection on the ground that the government 19 discriminated against him on the basis of national origin, we note 20 that 21 peremptory challenges based on ethnicity, see Hernandez, 500 U.S. 22 352, and gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 23 128-29 (1994), this Court has not decided the issue of whether 24 national 25 protection." while Batson origin has "is a been extended cognizable beyond race [classification] to apply for to Batson Rodriguez v. Schriver, 392 F.3d 505, 511 n.9 (2d Cir. - 29 - 1 2004). 2 entirely on national origin would violate equal protection, we 3 conclude that a national-origin-based Batson challenge here fails 4 for the reasons stated above, i.e., that the government had a 5 neutral reason for excusing Mr. Stewart and that he would have been 6 excused even if national origin had not been a consideration. 7 C. however, that a peremptory challenge based Challenges to the Identification Testimony Douglas makes several claims of error with respect to the 8 9 Assuming, admission of the identification testimony of Vitetta and Sarin. He 10 contends that their identifications of him were unreliable because 11 they resulted from impermissibly suggestive photographic arrays; 12 that the court erred in excluding from evidence an affidavit signed 13 by Sarin that cast doubt on her identification of Douglas; and that 14 the government suppressed evidence contradicting or impeaching those 15 witnesses's identifications, in violation of Brady v. Maryland, 373 16 U.S. 83 (1963). 17 18 1. We find no merit in these contentions. The Alleged Suggestiveness of the Photographic Array As described in Part I.A. above, Vitetta identified 19 Douglas at trial as the man he had seen in the parking lot just 20 after Moran's body had been dragged on the ground and put in the 21 trunk of the Toyota; and both Vitetta and Sarin testified that they 22 had identified Douglas from the photographic array that they were 23 shown in the days following April 22. 24 unsuccessfully to suppress those photographic identifications and to - 30 - Prior to trial, Douglas moved 1 preclude any in-court identification of him on the ground that the 2 photographic array was "impermissibly suggestive and created a 3 significant risk of misidentification" (Memorandum in Support of 4 Defendant's Pretrial Motions, dated February 4, 2005, at 9). 5 this appeal, Douglas contends that the district court erred in 6 summarily denying this aspect of his suppression motion, arguing 7 principally that (a) one of the photos was a picture of "a known 8 murderer" that "had been prominently displayed in tabloids in the 9 New York area" (Douglas brief on appeal at 35), and (b) the 10 background colors in the photos made the picture of Douglas stand 11 out from the others. On His contentions are meritless. 12 A defendant's right to due process includes the right not 13 to be the object of suggestive police identification procedures that 14 make an identification unreliable. See, e.g., Manson v. Brathwaite, 15 432 U.S. 98, 106 (1977) ("Brathwaite"); Neil v. Biggers, 409 U.S. 16 188, 198 (1972) ("Biggers"); Simmons v. United States, 390 U.S. 377, 17 384 (1968). 18 in-court identification if the authorities' pretrial photographic 19 identification procedures were "so impermissibly suggestive as to 20 give 21 misidentification." Simmons, 390 U.S. at 384 (emphasis added). And 22 "[w]hile th[at] phrase was coined as a standard for determining 23 whether an in-court identification would be admissible in the wake 24 of a suggestive out-of-court identification, with the deletion of 25 'irreparable' rise Generally, a witness will not be allowed to make an to a it very serves substantial equally - 31 - likelihood well as a of irreparable standard for the 1 admissibility 2 identification itself." 3 determining 4 either pretrial or in-court identification, "reliability is the 5 linchpin . . . ." 6 of the testimony concerning the out-of-court Biggers, 409 U.S. at 198. admissibility of identification Thus, "in testimony" for Brathwaite, 432 U.S. at 106 n.9, 114. "We review the district court's determination of the 7 admissibility of identification evidence for clear error." United 8 States v. Mohammed, 27 F.3d 815, 821 (2d Cir.), cert. denied, 513 9 U.S. 975 (1994). We may review the photographic array itself to 10 assess its fairness. See, e.g., United States v. Jacobowitz, 877 11 F.2d 162, 168 (2d Cir.), cert. denied, 493 U.S. 866 (1989). 12 We see no merit in Douglas's contention that the array was 13 tainted by the presence of a picture of John Royster, a convicted 14 killer of some notoriety. 15 picture in New York area newspapers had occurred some eight years 16 earlier, and the district judge noted, "I did not recognize this 17 photograph, although I regularly read the newspapers . . . ." 18 dated March 23, 2005, at 8. 19 witness actually recognized Royster, that witness presumably would 20 not have selected him, and thus would have viewed the array as a 21 five-person array rather than a six-person array. 22 inherently improper about a five-person array." 23 The frequent appearance of Royster's Order The district court stated that "if a There is nothing Id. We agree. Further, we have reviewed the photographic array and see 24 no hint of suggestiveness. All are head-shot photographs, all of 25 brown-skinned, non-bespectacled men in roughly the same age group, - 32 - 1 with short-cropped hair, non-receding hairlines, and thin or trimmed 2 mustaches. 3 suggesting a thinner build than the others. 4 colors of the photos, no two are the same, and no picture stands out 5 because of its background color. 6 "[i]t simply cannot be said that 'the picture of the accused . . . 7 so stood out from all [of] the other photographs as to suggest to an 8 identifying witness that [the accused] was more likely to be the 9 culprit.'" Only one of the six (Royster) has a thin face, As to the background The district court found that Id. (quoting Jarrett v. Headley, 802 F.2d 34, 41 (2d 10 Cir. 1986) (other internal quotation marks omitted)). 11 We see no error in that finding. 12 Given the lack of any suggestiveness in the photo array, 13 the identification testimony of Vitetta and Sarin was admissible at 14 trial "without further inquiry into the reliability of the pretrial 15 identification[s]," United States v. Maldonado-Rivera, 922 F.2d 934, 16 973 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991), of Douglas 17 as the man Vitetta saw standing behind the car into whose trunk 18 Moran's body had just been dumped and as the man Sarin saw driving 19 the SUV out of the parking lot. 20 not conducting a further inquiry as to the reliability of those 21 identifications, we would conclude that such an error was without a 22 doubt harmless in light of the trial testimony of Douglas himself, 23 described in Parts I.B. and I.C. above, that it was he who drove the 24 SUV out of the parking lot, and that during his dealings with 25 Moran's body, he had seen Vitetta watching him. And if there had been any error in - 33 - 2. 1 The Exclusion of Sarin's Affidavit 2 Douglas also contends that the trial court erred in 3 excluding from evidence a Sarin affidavit that stated that the 4 driver of the SUV might have been white. 5 district court are reviewed for abuse of discretion, see, e.g., Old 6 Chief v. United States, 519 U.S. 172, 174 n.1 (1997); United States 7 v. 8 discretion here. Abel, 469 U.S. 45, 54-55 (1984), Evidentiary rulings of the and we see no abuse of 9 In a hearing outside the presence of the jury, Sarin was 10 questioned about an affidavit she had signed on the afternoon of 11 April 22, in which the driver of the SUV was described as a 12 "'heavyset male, possibly white'" (Tr. 124). 13 asked if he was possibly, could he have possibly been white. 14 said, he was possibly white but I was confident that he was a black 15 male." She testified, "I was I (Id.) 16 In the presence of the jury, Sarin testified, as described 17 in Part I.A. above, that the driver of the SUV was a heavyset, black 18 male with dark facial hair, and that she had selected the picture of 19 Douglas from the photographic array as the driver of the SUV. 20 cross-examination, Douglas's attorney was allowed to have Sarin read 21 from her April 22 affidavit the statement, "'I saw a heavyset male, 22 possibly white, with a beard, driving the SUV.'" 23 defense 24 possibly white?" she responded, "Possibly white, yes." 25 191.) counsel asked whether Sarin - 34 - had "said On (Tr. 190.) When heavyset male, (Id. at 1 On redirect examination, Sarin testified that her April 22 2 affidavit had been prepared by the police detective interviewing 3 her; that she did not tell the detective what words to use in the 4 affidavit; that she had not read the typed affidavit carefully for 5 the accuracy of its contents before she signed it; and that she did 6 not notice that its only reference to the race of the person she was 7 describing was "possibly white." 8 that when she was asked by the detective to describe the SUV's 9 driver, she had "said he was a heavyset, black male"; that when 10 asked if the driver could have been white, she had said "possibly"; 11 and that it was not her recollection, either on April 22 or at the 12 time of trial, that the driver of the SUV was white. (Id. at 193-94.) Sarin testified (Id. at 194.) 13 On recross-examination, defense counsel brought out that 14 Sarin's statement was taken just hours after the events on April 22; 15 that she had given the detective the information about what she had 16 seen; that she knew her statements were of importance to the police 17 investigation; 18 document recites that the driver [Sarin] saw was a heavyset male, 19 possibly 20 affidavit under penalty of perjury. that white" she (id. at had wanted 197); and to be that accurate; Sarin had that signed "the the Plainly, Douglas was allowed at trial to cross- and 21 22 recross-examine Sarin fully about the affidavit. 23 have her read aloud the portion of the affidavit that said that she 24 had seen a "'heavyset male, possibly white, with a beard, driving 25 the SUV.'" (Id. at 190.) He was allowed to And he was allowed to quote the "heavyset - 35 - 1 male, possibly white" language to the jury repeatedly (see, e.g., 2 id. at 190, 191, 197). 3 examine 4 affidavit, we see no abuse of discretion in the court's refusal to 5 allow Douglas also to introduce the affidavit itself. 6 3. Sarin In light of the latitude given to Douglas to repeatedly with respect to that phrase in the The Posttrial Brady Motion 7 Following his conviction, Douglas unsuccessfully moved for 8 a new trial on the ground that the government had failed to disclose 9 to him prior statements by Vitetta and Sarin and notes of their 10 interviews by agents of the Federal Bureau of Investigation ("FBI") 11 (collectively "the Vitetta/Sarin documents") until the Friday before 12 the Monday on which the trial began, thereby violating his due 13 process rights as declared in Brady v. Maryland, 373 U.S. 83, and 14 its progeny, e.g., Giglio v. United States, 405 U.S. 150 (1972). 15 pursues this contention on appeal. He 16 Under Brady and its progeny, "the suppression by the 17 prosecution of evidence favorable to an accused . . . violates due 18 process where the evidence is material" to the accused's guilt or 19 punishment, Brady, 373 U.S. at 87. 20 notions that the suppressed evidence is favorable to the accused and 21 that he was prejudiced by its suppression. 22 Whitley, 514 U.S. 419, 434 (1995) ("the constitutional duty is 23 triggered by the potential impact of favorable but undisclosed 24 evidence"). Materiality encompasses the See, e.g., Kyles v. Thus, as discussed further below, "[t]here are three - 36 - 1 components of a true Brady violation: 2 favorable to the accused, either because it is exculpatory, or 3 because it is impeaching; that evidence must have been suppressed by 4 the [prosecution], either willfully or inadvertently; and prejudice 5 must have ensued," Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 6 Where a defendant's "Brady claim was raised in a motion 7 for a new trial pursuant to Rule 33 of the Federal Rules of Criminal 8 Procedure, 9 discretion." we review the denial The evidence at issue must be of the motion for abuse of United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002) 10 ("Gil"). For the reasons that follow, the district court did not 11 abuse its discretion in concluding that Douglas established none of 12 the three components of his Brady claim. To 13 begin with, were not does not disclosed, complain but only that that the 14 Vitetta/Sarin 15 received them just one business day (three calendar days) before 16 trial. 17 conclusion that the timing of the government's disclosure of these 18 documents constituted their "suppression" within the meaning of 19 Brady. 20 21 22 23 24 25 26 27 documents Douglas he The record in this case does not lend itself to the With respect to when the prosecution must make a disclosure required by Brady, the law . . . appears to be settled. Brady material must be disclosed in time for its effective use at trial, see, e.g., Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.2001), or at a plea proceeding, see United States v. Persico, 164 F.3d 796, 804 (2d Cir.1999); Tate v. Wood, 963 F.2d 20, 24 (2d Cir.1992). 28 In re United States (Coppa), 267 F.3d 132, 135 (2d Cir. 2001) 29 (emphasis in original). Brady material that is not "disclos[ed] in - 37 - 1 sufficient time to afford the defense an opportunity for use" may be 2 deemed suppressed within the meaning of the Brady doctrine. Leka v. 3 Portuondo, 257 F.3d 89, 103 (2d Cir.2001). 4 5 6 7 8 9 10 11 But as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner. There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial. . . . 12 In re United States (Coppa), 267 F.3d at 144. 13 a document that was "exculpatory and impeaching Brady material," 14 given to the defendant on the Friday before a Monday trial, was in 15 effect suppressed within the meaning of Brady as it was buried in 16 the midst of "five reams of paper labeled '3500 material,'" Gil, 297 17 F.3d at 103, 106. 18 In Gil, we held that Although Douglas relies on Gil for his contention that the 19 Vitetta/Sarin documents were suppressed, Gil is readily 20 distinguishable. 21 defendant on the Friday before trial consisted of more than 600 22 exhibits, totaling some 2,700 pages. 23 memorandum written by and to persons other than the witness whose 24 testimony it would impeach; and the entry for that document in the 25 41-page index to the exhibits identified the document only by the 26 initials of the witness, without mention of the names of its author 27 or addressee. We concluded that, given the delivery of the document 28 in that obscure fashion, "the defense was not in a position to read 29 it, identify its usefulness, and use it." In that case, the documents delivered to the - 38 - Further, Gil's focus was a Id. Here, in contrast, the documents given to Douglas on the 1 2 Friday before trial totaled only some 290 pages. 3 according to the witness to which they pertained and were easily 4 recognizable as such, with the documents relating to a given witness 5 fastened with a clip. 6 the statements of Vitetta and Sarin themselves, respectively, not to 7 statements by others. 8 just 11 pages. 9 plus an eighth page that was inadvertently omitted on Friday and was by fax They were grouped The Vitetta/Sarin documents related only to The documents relating to Vitetta totaled The documents relating to Sarin totaled 7 pages, 10 sent on the following afternoon. The 19 11 Vitetta/Sarin documents were easily found and fathomed. 12 pages of conclude that they were suppressed. We cannot 13 Nor did Douglas establish that he was prejudiced by not 14 having received the Vitetta/Sarin documents earlier. As to Vitetta, 15 Douglas focuses in particular on an FBI report and handwritten notes 16 stating that when Vitetta first entered the parking lot to work on 17 his car, he saw the Toyota idling and thought the man he saw in the 18 driver's seat was darker-skinned than the man he saw standing behind 19 the Toyota just after Moran's body had been dumped into it. 20 Sarin, Douglas complains particularly about not having had the 21 affidavit discussed in Part II.C.2. above, which stated that the man 22 Sarin had seen driving the SUV out of the parking lot was "possibly 23 white," along with an FBI report and notes to the same effect. Douglas argues first that these documents could be used to 24 25 As to impeach the credibility of Vitetta - 39 - and Sarin by "clearly 1 discredit[ing] their trial testimony that Douglas was the one and 2 only person they saw at the scene." 3 56.) 4 district court noted that the documents were in fact used to attempt 5 the impeachment of both witnesses on cross-examination, to emphasize 6 discrepancies on summation, and to argue on summation substantively 7 that there was another person at the crime scene. 8 Denying Motion for a New Trial, dated January 30, 2006 ("Decision 9 Denying (Douglas brief on appeal at But that impeachment potential reveals no prejudice, for the New Trial"), at 16. The court See Decision observed that "the 10 information contained in the supposedly suppressed documents . . . 11 was used at trial, to the best possible effect." 12 Douglas also argues that late Id. disclosure of the 13 Vitetta/Sarin documents deprived him of the opportunity "to follow 14 up on any leads from the descriptions or from Vitetta or Sarin" 15 (Douglas brief on appeal at 57). 16 this argument in Douglas's new-trial motion, noted that Douglas 17 "made no proffer of any defense efforts made to locate or speak with 18 Vitetta or Sarin, in person or by telephone, in the four days 19 between disclosure of their prior statements and their testimony," 20 and that Douglas "did not seek an adjournment of the proceedings." 21 Decision Denying New Trial at 17. 22 Douglas provides no hint as to what sort of "leads" could have been 23 gleaned from the Vitetta/Sarin documents; and none come to mind, 24 given Douglas's testimony that, inter alia, he knew who had killed 25 Moran but just did not know the man's name. The district court, in rejecting - 40 - More importantly, we note that 1 2 3 4 5 6 7 8 9 10 11 12 13 Finally, Douglas did not establish that the information in the Vitetta/Sarin documents was material. [The] touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial. 14 Kyles, 514 U.S. at 434 (internal quotation marks omitted); see also 15 Leka v. Portuondo, 257 F.3d at 104. 16 17 18 19 20 21 22 [S]trictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. Strickler, 527 U.S. at 281. The contents of the Vitetta/Sarin documents plainly do not 23 meet this test. Although Vitetta was recorded by one investigator 24 as having stated that he had thought the man in the idling Toyota 25 was darker-skinned than the man he saw standing behind the Toyota 26 just after Moran's body was put in the trunk, Vitetta testified that 27 upon seeing Douglas's picture in the photographic array he realized 28 they were the same man because the facial characteristics were the 29 same. Moreover, even if they were not the same man, Vitetta's prior 30 statement provided no substantive support for Douglas's version of 31 the events, for (1) Vitetta said he saw only one person in the 32 idling Toyota, whereas in Douglas's version of the events, both the - 41 - 1 unnamed man and Moran were in that vehicle; and (2) whereas Vitetta 2 had stated that the dark-skinned man was in the driver's seat of the 3 Toyota, according to Douglas's testimony the unnamed man--the only 4 person whom Douglas described as darker-skinned than himself--forced 5 Moran to drive the Toyota. 6 inconsistent with Douglas's own scenario. Thus, the prior Vitetta statement was 7 Similarly, to the extent that Sarin had said that the 8 driver of the SUV was "possibly white," that statement provided no 9 substantive support for Douglas's defense. In his version of the 10 events, Douglas did not mention any white person. Further, all 11 Sarin saw, according to her testimony and the documents, was a man 12 backing the SUV (whose licence plate she noted) out of a parking 13 space and driving it out of the parking lot. 14 trial and in a preliminary hearing that she had said, and was 15 confident, that the driver was a heavyset black man; she had 16 selected the picture of Douglas as the driver; and Douglas himself 17 testified that he had driven the SUV out of the lot. Sarin maintained at 18 In sum, the contents of the Vitetta/Sarin documents were 19 not favorable to Douglas for they were inconsistent with his version 20 of the events, and they provide no basis for finding any reasonable 21 probability that earlier disclosure of those documents would have 22 produced a different verdict. 23 Douglas's Brady claim. 24 25 D. The district court properly rejected The Challenge to the Impeachment of Douglas with His Postarrest, Pre-Miranda-Warnings Statement that He Had Disposed - 42 - of Moran's Gun 1 2 Prior to trial, Douglas moved to suppress, inter alia, the 3 statement he made to police officers in Florida that he had thrown 4 Moran's 5 government acknowledged that Douglas had not been advised of his 6 Miranda rights prior to being questioned as to the whereabouts of 7 the gun (see Government's Memorandum of Law in Opposition to Pre- 8 Trial Motions of Paul Ryan Douglas, dated February 25, 2005, at 4), 9 and it stated that that statement "will not be offered by the 10 gun off a bridge. In response to that motion, the Government in its case in chief" (id. at 7). At 11 trial, the government made no reference to that 12 statement in its case-in-chief. However, after Douglas testified to 13 his version of the events of April 22, including his testimony that 14 he put Moran's body into the trunk of Moran's car but had had no 15 role in assaulting or killing Moran, and his testimony that he freed 16 himself from the control of the unnamed man by getting the shotgun 17 from the back of the SUV, the government sought to cross-examine 18 Douglas as to whether Moran was armed and what had happened to 19 Moran's gun, and to impeach him (through both cross-examination and 20 rebuttal evidence) with his statement to the Florida police that he 21 had thrown Moran's gun off a bridge. 22 receiving briefing from the parties, ruled that the government's 23 proposed cross-examination was permissible and its rebuttal evidence 24 admissible, citing, inter alia, United States v. Payton, 159 F.3d 25 49, 58 (2d Cir. 1998) ("When a - 43 - The trial court, after defendant offers an innocent 1 explanation" for his conduct, "he 'opens the door' to questioning 2 into the truth of his testimony, and the government is entitled to 3 attack his credibility on cross-examination."). 4 that this was error; we disagree. Douglas contends "It is essential . . . to the proper functioning of the 5 6 adversary system 7 government be permitted proper and effective cross-examination in an 8 attempt to elicit the truth." 9 620, 626-27 that (1980). when Thus, a defendant takes the stand, the United States v. Havens, 446 U.S. the Supreme Court has "repeatedly 10 insisted that when defendants testify, they must testify truthfully 11 or suffer the consequences." 12 that the defendant's constitutional shield against having illegally 13 seized evidence used against him could be 'perverted into a license 14 to 15 confrontation with prior inconsistent utterances'" (quoting Harris 16 v. New York, 401 U.S. 222, 226 (1971))). 17 taken from a defendant in violation of his Miranda rights, though 18 they may not be introduced by the government during its case-in- 19 chief, are nonetheless admissible to impeach statements made by the 20 defendant in the course of his testimony. 21 U.S. at 226 (admissible to impeach direct testimony); Oregon v. 22 Hass, 420 U.S. 714, 721-22 (1975) (same); see also Havens, 446 U.S. 23 at 627-28 (evidence seized in violation of the defendant's Fourth 24 Amendment rights is admissible to impeach testimony given by the 25 defendant on cross-examination). use perjury by way of Id. at 626 ("reject[ing] the notion a defense, free from the risk of Accordingly, statements See, e.g., Harris, 401 Cross-examination questions with - 44 - 1 respect to a defendant's otherwise privileged statements are 2 justifiable if they "would have been suggested to a reasonably 3 competent cross-examiner by [the defendant's] direct testimony." 4 Id. at 626. 5 Although Douglas contends that cross-examination about 6 Moran's gun was improper because Douglas's direct testimony made no 7 mention of that gun, we disagree. 8 innocent of any wrongdoing with respect to Moran, although he 9 admitted that he had pulled Moran out of the SUV, dragged Moran to Douglas testified that he was 10 Moran's car, and hoisted him into the trunk of that car. 11 also testified that while the unnamed man was in the front seat of 12 the SUV, Douglas had entered the back seat with Moran and tried 13 unsuccessfully to remove the tape from Moran's mouth; and, as set 14 out in Part I.B. above, Douglas testified that when his tears turned 15 to rage, he "jumped up" and "reached" into the rear of the SUV, 16 pulled out a case containing a shotgun, "unzipped the case," pointed 17 the shotgun at the unnamed man, noisily "racked" the shotgun, and 18 was thereby able to cause the unnamed man to flee. 19 Whether the focus was (a) on what Douglas observed as he pulled 20 Moran from the SUV, dragged his body to the Toyota, picked up 21 Moran's body, and dumped the body into the trunk of the Toyota, or 22 (b) 23 noticeably to the unnamed man--accessing of a weapon other than the 24 shotgun in its zippered case in the rear of the SUV, these aspects 25 of on Douglas's Douglas's potentially direct swifter testimony would - 45 - access have to Douglas (Tr. 544-45.) and--far suggested to less any 1 "reasonably competent cross-examiner" a question as to whether Moran 2 was wearing a gun. 3 set out in Part I.C. above, that he knew ATM technicians were 4 usually armed but responded that he was not sure whether Moran was 5 armed, that he had no idea what had happened to Moran's gun, and 6 that he, Douglas, "didn't do anything" (Tr. 675), the government was 7 entitled to impeach him by asking him whether he hadn't in fact 8 stated to the police in Florida that he had thrown Moran's gun off 9 a bridge. When Douglas admitted on cross-examination, as When Douglas denied that he had made such a statement, 10 the government was entitled to impeach that denial by calling as 11 witnesses in its rebuttal case the Florida officers to whom the 12 statement was made. 13 that the rebuttal evidence was to be considered only for purposes of 14 impeachment, not for its truth; and we see no error. 15 E. The trial judge properly instructed the jury Other Contentions 16 Douglas's other contentions, which include challenges to 17 the sufficiency of the evidence and the restitution order, also 18 provide no basis for relief. 19 1. Section 2113(a) of Title 18 provides in pertinent part as 20 21 22 23 24 25 The Sufficiency Challenge follows: (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money or any other thing of value belonging to, or - 46 - 1 2 in the care, custody, control, possession of, any bank . . . ; or management, or 3 4 5 6 7 8 Whoever enters or attempts to enter any bank . . . or any building used in whole or in part as a bank, . . . with intent to commit in such bank . . . , or building, or part thereof, so used, any felony affecting such bank . . . and in violation of any statute of the United States, or any larceny-- 9 10 Shall be fined under this title or imprisoned not more than twenty years, or both. 11 18 U.S.C. § 2113(a). 12 charged with violating the second paragraph of that section. 13 trial, he unsuccessfully moved pursuant to Fed. R. Crim. P. 29 for 14 a judgment of acquittal, arguing that the attempt prohibited by the 15 second paragraph is not attempted larceny but only attempted entry 16 into the bank building (with intent to commit a felony therein) and 17 that the government failed to prove such an attempted entry because 18 there was no evidence that he made any "physical effort to get into 19 the building" housing the Yonkers ATMs (Tr. 797; see id. at 427 20 ("there has to be some move in the direction of trying to get into-- 21 physically 22 contention on appeal. 25 26 27 28 29 30 31 32 33 into the bank")). Douglas pursues At this The standard for establishing a criminal attempt is well 23 24 getting In the superseding indictment, Douglas was settled. In order to establish that a defendant is guilty of an attempt to commit a crime, the government must prove that the defendant had the intent to commit the crime and engaged in conduct amounting to a "substantial step" towards the commission of the crime. . . . For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual - 47 - commission of the substantive crime. 1 2 United States v. Yousef, 327 F.3d 56, 134 (2d Cir.) (discussing 18 3 U.S.C. 4 destruction of and attempts to destroy aircraft)) (other internal 5 quotation marks omitted), cert. denied, 540 U.S. 933 (2003); see, 6 e.g., United States v. Mowad, 641 F.2d 1067, 1073 (2d Cir.), cert. 7 denied, 454 U.S. 817 (1981); United States v. Manley, 632 F.2d 978, 8 988-89 (2d Cir. 1980) ("Manley"), cert. denied, 449 U.S. 1112 9 (1981); United States v. Jackson, 560 F.2d 112, 117-20 (2d Cir.), 10 cert. denied, 434 U.S. 941 (1977). Under this standard, a defendant 11 may be found guilty of attempting to enter a banking facility even 12 if he did not move physically to breach its perimeter, so long as he 13 took a substantial step toward attempting to gain entry. §§ 32(a)(1), (2), and (7) (2000) (which prohibited 14 Although Douglas contends that the "substantial step" 15 standard does not apply to § 2113(a), his only argument in support 16 of that contention relies on the current version of Rule 31(c) of 17 the Federal Rules of Criminal Procedure, which provides as follows: 18 19 (c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following: 20 21 (1) an offense necessarily included in the offense charged; 22 23 (2) an charged; or 24 25 26 (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right. attempt to commit the offense 27 Fed. R. Crim. P. 31(c) (2002). 28 position (a strange one for a defendant to endorse) that under - 48 - Douglas apparently takes the 1 subpart (2), a defendant may be convicted of an attempt to commit an 2 offense even if no statutory provision prohibits such an attempt; he 3 thus argues that Congress's express prohibition against "attempts to 4 enter" in § 2113(a) would be "unnecessary surplusage," on the theory 5 that "Congress did not need to insert those words because the 6 prosecutor could rely on Rule 31(c)" (Douglas brief on appeal at 7 48), unless Congress intended to require proof of more than the 8 traditional "substantial step" to establish the offense of attempt 9 under § 2113(a). This argument has several flaws. 10 In addition to noting the obvious due process concerns for 11 the possibility of convicting a defendant of an attempt that is not 12 prohibited by any statutory provision, see, e.g., Fiore v. White, 13 531 U.S. 225, 228 (2001) (conviction of a defendant for conduct that 14 a "criminal statute . . . does not prohibit . . . . violate[s] due 15 process"), we see no basis for inferring that Congress's inclusion 16 in § 2113(a) of an express prohibition against attempts to enter a 17 bank building for felonious purposes was based on any thought that 18 "the prosecutor could rely on Rule 31(c)" (Douglas brief on appeal 19 at 48). 20 amended in 1937, see 50 Stat. 749 (1937), codified at 12 U.S.C. 21 § 588b (1940), and thus predated the Federal Rules of Criminal 22 Procedure (adopted in 1944, effective March 21, 1946) by several 23 years. 24 Rule 31(c) stated that 25 26 That prohibition appeared in § 2113's predecessor as Further, when § 2113(a) was enacted in 1948 and until 2002, [t]he defendant may be found guilty of an offense necessarily included in the offense charged or of an - 49 - attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense. 1 2 3 4 Fed. R. Crim. P. 31(c) (1946) (emphases added). This provision was 5 simply "a restatement of existing law, 18 U.S.C. former § 565." 6 Fed. R. Crim. P. 31 Advisory Committee Note (1944 Adoption); see Act 7 of June 1, 1872, § 9, 17 Stat. 196, 198 (a defendant "may be found 8 guilty of an attempt to commit the offence . . . charged: 9 That such attempt be itself a separate offence." (first emphasis in Provided, 10 original; second emphasis ours)). 11 general 12 consistently held that an attempt to commit criminal conduct "is 13 therefore actionable only where . . . a specific criminal statute 14 makes impermissible its attempted as well as actual violation," 15 Manley, 632 F.2d at 987 (emphasis added); see, e.g., United States 16 v. Dhinsa, 243 F.3d 635, 675 (2d Cir. 2001) ("'[u]nder Fed.R.Crim.P. 17 31(c), a defendant may be found guilty of an attempt to commit a 18 substantive offense, whether or not the attempt was charged in the 19 indictment, provided an attempt is punishable'") (quoting United 20 States v. Marin, 513 F.2d 974, 976 (2d Cir. 1975) (emphasis ours)), 21 cert. denied, 534 U.S. 897 (2001). 22 surplusage, Congress's inclusion in § 2113(a) (and its predecessor) 23 of an express prohibition against attempts to enter a bank was 24 essential in order to permit a defendant to be convicted of such an 25 attempt. 26 federal statute Thus, there was and is "no proscribing attempt," and we have Accordingly, far from creating To the extent that Douglas argues that the current version - 50 - 1 of Rule 31(c) permits a defendant to be convicted of attempt even in 2 the absence of a statutory prohibition against such an attempt, it 3 can hardly be inferred that, in introducing the attempt prohibition 4 in 1937 and including it in § 2113(a) in 1948, Congress had in mind 5 the reformulation of Rule 31(c) in 2002. 6 prohibition been added to § 2113(a) contemporaneously with or 7 subsequent to the 2002 reformulation of Rule 31(c), Douglas's 8 argument would fare no better. 9 version of Rule 31(c) is different from that of its predecessors, 10 with the current "if the attempt is an offense" language appearing 11 only in subpart (3), the pertinent Advisory Committee Note states 12 that the changes in Rule 31 "are intended to be stylistic only." 13 Fed. R. Crim. P. 31 Advisory Committee Note (2002). Accordingly, we 14 reject the notion that the 2002 amendment to Rule 31(c)(2) was 15 intended to introduce the principle that a defendant may permissibly 16 be convicted of an attempt that is not prohibited by statute. 17 thus 18 "substantial step" standard for proving the crime of attempt--which 19 was applied in all of the above attempt cases--is inapplicable to 20 § 2113(a). see no basis for But even had the attempt Although the format of the 2002 Douglas's contention that the We normal 21 To the extent that Douglas contends also that the evidence 22 was insufficient to show that he took a substantial step toward 23 entering the building housing the Yonkers ATMs, we reject that 24 contention, crediting, as we must, every inference that could have 25 been drawn in the government's favor and deferring to the jury's - 51 - 1 resolution of the weight of the evidence and the credibility of the 2 witnesses, see, e.g., United States v. Morrison, 153 F.3d 34, 49 (2d 3 Cir. 1998). 4 but in conjunction, see, e.g., United States v. Podlog, 35 F.3d 699, 5 705 (2d Cir. 1994), cert. denied, 513 U.S. 1135 (1995), and the 6 conviction must be upheld if "any rational trier of fact could have 7 found the essential elements of the crime beyond a reasonable 8 doubt," Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 9 original). Pieces of evidence are to be viewed not in isolation These principles apply whether the evidence being 10 reviewed is direct or circumstantial. 11 See, e.g., Glasser v. United States, 315 U.S. 60, 80 (1942). 12 As the district court noted in denying Douglas's motion 13 for acquittal in the present case, there was ample evidence from 14 which the jury could infer that Douglas "took substantial steps to 15 commit the crime of entering the Citibank branch at 1915-25 Central 16 Park Avenue for the purpose of stealing money from the ATM machines 17 located there." 18 Douglas 19 Brink's, that the Yonkers ATMs were replenished with hundreds of 20 thousands of dollars in cash on Thursday mornings; that on Thursday 21 morning April 22, Douglas drove to that facility from his home in 22 Brooklyn, some 20-to-30 miles away, bringing, inter alia, a shotgun 23 and a bulletproof vest; that Douglas went back and forth between the 24 SUV and the bank to see whether the weekly cash infusion had been 25 made; that when Moran arrived at the Yonkers ATMs facility to fix an had (Tr. 800.) knowledge, by The record included evidence that means - 52 - of his prior employment with 1 ATM printer he had the keys and codes needed to gain access to the 2 backs and interiors of the ATMs; and that after Douglas clubbed 3 Moran and hid his body, those keys and codes were missing. 4 The jury could easily have inferred that Douglas assaulted 5 Moran in order to obtain the keys and codes needed to gain access to 6 the ATMs and that Douglas took those items. 7 the circumstances here, were more than sufficient to support a 8 finding that Douglas took substantial steps toward entering the 9 banking facility with intent to steal money from the ATM machines. 10 2. Those inferences, in The Challenges to the Restitution Order 11 The district court, proceeding under the Mandatory Victims 12 Restitution Act ("MVRA"), 18 U.S.C. § 3663A, ordered Douglas to pay 13 $5,031.44 in restitution to Moran's father ("Moran Sr."), comprising 14 $1,280 for unreimbursed funeral expenses and $3,751.44 for income 15 lost by Moran Sr. as a result of his use of annual leave in order to 16 participate in the investigation into the death of his son and 17 attend the related court proceedings. 18 pay $6,050 in restitution to Brink's, comprising $4,150 that Brink's 19 paid for a headstone for Moran, plus $1,900 it paid to Moran Sr. to 20 reimburse him for funeral-home expenses. 21 the restitution award should be vacated in its entirety because it 22 was entered more than 90 days after he was sentenced, and (2) that 23 the awards to Brink's and the award of lost income to Moran Sr. were 24 not authorized by the statute. The court ordered Douglas to Douglas contends (1) that There being no challenges to the - 53 - 1 court's arithmetic calculations or the evidence to support them, 2 Douglas's restitution challenges raise only issues of law, which we 3 review de novo, see, e.g., United States v. Boccagna, 450 F.3d 107, 4 113 (2d Cir. 2006), and we find them to be without merit. 5 The provisions governing the procedures for the issuance 6 of restitution orders state, inter alia, that if a victim's losses 7 are 8 sentencing, the court may order restitution by a date "not to exceed 9 90 days after sentencing," 18 U.S.C. § 3664(d)(5). not ascertainable by the date that is 10 days prior to In the present 10 case, Douglas was sentenced on January 31, 2006; the 90th day 11 thereafter was May 1; the amended judgment imposing the restitution 12 order was not entered until May 5. 13 14 15 16 17 18 We have noted, however, that the purpose behind the statutory ninety-day limit on the determination of victims' losses is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect crime victims from the willful dissipation of defendants' assets. 19 United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.) ("Zakhary"), 20 cert. denied, 541 U.S. 1092 (2004). 21 an extension of the proceedings beyond the 90-day period provides no 22 basis for vacating the restitution order unless the defendant can 23 show that the extension caused him actual prejudice. 24 also United States v. Johnson, 400 F.3d 187, 199 (4th Cir.) ("the 25 procedural requirements of § 3664 are intended to protect victims, 26 not the victimizers" (internal quotation marks omitted)), cert. 27 denied, 126 S. Ct. 134 (2005). 28 that he was in any way prejudiced by the fact that the restitution Accordingly, we have held that See id.; see Douglas has provided no indication - 54 - 1 order was entered on May 5, 2006, rather than May 1, and his 2 challenge to the order's timeliness is thus rejected. 3 Nor do we find merit in any of Douglas's substantive 4 challenges. 5 convicted of an offense described in § 3663A(c)--which includes "any 6 offense . . . in which an identifiable victim . . . has suffered a 7 physical injury," 18 U.S.C. § 3663A(c)(1)(B)--"the court shall order 8 . . . that the defendant make restitution to the victim of the 9 offense or, if the victim is deceased, to the victim's estate," id. 10 11 12 13 14 15 16 17 18 19 The MVRA provides that with respect to a defendant § 3663A(a)(1). For purposes of § 3663A, "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered . . . . In the case of a victim who is . . . deceased, the . . . representative of the victim's estate, another family member, or any other person appointed as suitable by the court, may assume the victim's rights under this section . . . . Id. § 3663A(a)(2). 20 As to the types of expenses to be compensated, subsection 21 (b) of § 3663A provides, in pertinent part, that the restitution 22 order is to require that the defendant, 23 24 25 26 in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services; and 27 28 29 30 31 (4) in any case, reimburse the victim for lost income . . . and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. 32 18 U.S.C. §§ 3663A(b)(3) and (4). - 55 - In addition, "[i]f a victim has 1 received compensation from insurance or any other source with 2 respect to a loss, the court shall order that restitution be paid to 3 the person who provided or is obligated to provide the compensation 4 . . . ." 18 U.S.C. § 3664(j)(1). 5 In objecting to the restitution award to Brink's, Douglas 6 relies on a statement in Zakhary "that 'defendants have a due 7 process interest in paying restitution only for losses actually 8 sustained by victims'" (Douglas brief on appeal at 62 (quoting 357 9 F.3d at 191 n.4) (emphasis in brief)); and he cites our opinion in 10 United States v. Reifler, 446 F.3d 65 (2d Cir. 2006), for the 11 proposition that Brink's cannot properly be awarded restitution 12 because it does not fit within the MVRA's definition of "victim" 13 (see Douglas brief on appeal at 61-62). 14 Douglas's cause. Neither case advances 15 Douglas's reliance on Zakhary is misplaced because that 16 case dealt with a "lump sum restitution order entered without any 17 identification of victims and their actual losses." 18 190. 19 footnote was the need to determine which of various entities had 20 lost money, and hence were the victims of the defendant's crimes, 21 see, e.g., id. ("mandatory restitution can only be imposed to the 22 extent 23 (internal quotation marks omitted)). 24 that it was Brink's that reimbursed Moran Sr. $1,900 for part of 25 Moran's funeral-home expense and paid $4,150 for Moran's headstone. 357 F.3d at Thus, the context of the above-quoted language in the Zakhary that the victims of a crime - 56 - are actually identified" Here, there is no question 1 Douglas's reliance on Reifler is also misplaced, for we 2 had no occasion in that case to interpret §§ 3663A(b)(3) and (4), as 3 the restitution issues there concerned compensation for victims of 4 financial fraud, rather than bodily injury. 5 orders in that case were held to be erroneous principally because 6 they (1) ordered payments for losses that were not occasioned by the 7 defendants' criminal conduct, and (2) ordered payments to persons 8 who--far 9 coconspirators, see 446 F.3d at 127. from being victims--were And the restitution among the defendants' 10 Douglas's offense, in contrast, resulted in the death of 11 Moran, occasioning his documented funeral and related expenses. 12 Restitution with respect to that category of expenses was authorized 13 by § 3663A(b)(3), and the MVRA required that restitution be ordered 14 not only for Moran's "estate [or] another family member," who "may 15 assume 16 § 17 successors with compensation for losses for which restitution was 18 appropriate, see id. § 3664(j)(1). 19 ordering Douglas to pay restitution to Brink's for its reimbursement 20 of Moran Sr. for funeral-home expenses. 21 restitution to Brink's for its direct payment for Moran's headstone. 22 Had Moran Sr. purchased the headstone, he plainly would have been 23 entitled to restitution for that funeral-related expense as Moran's 24 father or the representative of Moran's estate under §§ 3663A(a)(2) 25 and (b)(3); and had Brink's then reimbursed Moran Sr. for the [Moran's] 3663A(a)(2), but rights also under for any - 57 - this person section," who 18 U.S.C. provided Moran's Thus, the court did not err in Nor did it err in ordering 1 headstone, Brink's would have been entitled to restitution for that 2 reimbursement under § 3664(j)(1). 3 the headstone directly rather than having Moran Sr. pay for it and 4 reimbursing him does not relieve Douglas of the obligation to make 5 restitution for the cost incurred. 6 Malpeso, 7 restitution to the FBI under the Victim and Witness Protection Act, 8 the precursor to the MVRA, even though FBI had paid the expense 9 directly 126 F.3d instead 92, of 95 (2d or See generally United States v. Cir. reimbursing functional The fact that Brink's paid for the economic 1997) (upholding victim, there difference award being between of "no 10 significant the 11 indemnitor's prior payment of the victim's expense and subsequent 12 reimbursement"). 13 Finally, Douglas contends that the district court erred in 14 ordering restitution to Moran Sr. to compensate him for lost income, 15 in the form of his expenditure of accrued annual leave to assist in 16 the investigation and attend court proceedings. 17 that "Moran[] Sr. clearly is a 'victim' within the meaning of the 18 MVRA," Douglas argued to the district court that Moran Sr.'s use of 19 annual leave "actually prevent[ed] lost income. It appears that the 20 annual leave was used exactly as it is intended and cushioned Mr. 21 Moran [Sr.] against incurring lost income." (Letter from Clinton W. 22 Calhoun, III, to Judge McMahon dated April 27, 2006, at 2, 3.) 23 district court properly rejected this argument. It reasoned that if 24 Moran Sr. had not had to use that annual leave for the days on which 25 he assisted in the investigation and attended court proceedings, he - 58 - While conceding The 1 would have had the right to receive payment for those days upon 2 leaving his job. 3 796-97 (3d Cir. 1999). 4 that Moran Sr.'s expended annual leave in this case qualifies as 5 lost income under § 3663A(b)(4). See, e.g., United States v. Jacobs, 167 F.3d 792, We see no error in the court's conclusion CONCLUSION 6 7 We have considered all of Douglas's arguments on this 8 appeal and have found them to be without merit. 9 district court is affirmed. - 59 - The judgment of the

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